Frost v Commissioner of Police
[2014] QDC 294
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- Unreported Judgment
- Frost v Commissioner of Police[2014] QDC 294
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Frost v Commissioner of Police[2014] QDC 294
Frost v Commissioner of Police[2014] QDC 294
DISTRICT COURT OF QUEENSLAND
CITATION: | Frost v Commissioner of Police [2014] QDC 294 |
PARTIES: | JULIE ANNE FROST (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | MAG-00001272/12; appeal 346/13 |
DIVISION: | |
PROCEEDING: | Criminal appeal |
ORIGINATING COURT: | Magistrates Court, Southport |
DELIVERED ON: | 19 December 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 August 2014 |
JUDGE: | McGill SC DCJ |
ORDER: | Appeal dismissed. |
CATCHWORDS: | POLICE OFFENCES – Obstructing police – resisting arrest – whether arrest lawful. Police Powers and Responsibilities Act 2000 s 365(1), s 634(2). Coleman v Kinbacher [2003] QCA 575 – applied. Dobbs v Ward [2002] QSC 109 – considered. George v Rockett (1990) 170 CLR 104 – applied. Hinchcliffe v Sheldon [1955] 3 AllER 406 – cited. Hussein v Chong Fook Kam [1970] AC 942 – cited. O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 – considered. Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 – applied. Rowe v Kemper [2009] 1 Qd R 247 – cited. Teelow v Commissioner of Police [2009] QCA 84 – cited. Tierney v Commissioner of Police [2011] QCA 327 – cited. Veivers v Roberts [1980] Qd R 226 – applied. |
COUNSEL: | The appellant appeared in person. N Lima, legal officer, for the respondent. |
SOLICITORS: | The appellant was not represented. Office of the Director of Public Prosecutions for the respondent. |
- [1]The appellant was charged with two offences, trespass under the Summary Offences Act 2005 and obstructing a police officer contrary to the Police Powers and Responsibilities Act 2000 s 790(1). Following a trial the appellant was on 25 September 2013 acquitted of the first charge but convicted of the second. She was fined $500, referred for collection to SPER; a conviction was not recorded. On 25 October 2013 she filed in the court at Southport a notice of appeal to this court under s 222 of the Justices Act against her conviction and sentence. The appellant represented herself both in the Magistrates Court and in this court.
Background
- [2]On 16 January 2012 a lecturer employed at Bond University was to deliver a lecture for a course on Australian Government and Politics, a lecture in the first week of the first semester for 2012: p 1-48. The appellant attended the lecture, although when she did so he told her, in accordance with his understanding, that she was not supposed to be there and that she was not enrolled in the subject: p 1-50. He briefly left the lecture room and spoke to a security officer who informed him that the police had been called, and then returned to the lecture room where he was experiencing some difficulty in getting the audio-visual system working. While he was doing so a Bond University security officer entered the classroom, went to the appellant and asked her to leave, but she refused to do so: p 1-51. The security officer then left the room and re-entered with two police officers: p 1-52.
- [3]One of those officers was the policeman who subsequently arrested the appellant. He had been told by the officer in charge of the Robina Police Station to go to the university and take up with security staff, and provided with a copy of a letter, a copy of which became Exhibit 3: p 3-19. On its face the letter was from the vice chancellor of the university to the appellant, dated 25 November 2011, and expressly revoked her right to enter premises or come onto the land of the university. He went with another police officer to the university where he spoke to the manager of security at the main security office, where he was told that the suspension was still current,[1] and that a security officer had spoken to the appellant in the law library and asked her to leave, she had declined to do so, but she had subsequently left the library and he was following her: p 3-26. The officer then moved his vehicle to another position and took up with another security officer who indicated that the appellant was in the lecture room.
- [4]The police then went with the security officer into the lecture room, and he spoke to the appellant, having activated a recorder. The recording of the exchange was played during the trial: Exhibit 9. He had a conversation with the appellant during which the appellant suggested to him that this was a civil matter, and that she had a licence from the university to be present, as a result of which he spoke again to the security manager of the university and spoke to another person who was a sergeant of police at the time, but who happened to be present because he was also attending the lecture.[2] After speaking to them the officer went back to the appellant, gave her a further opportunity to leave on her own accord, and asked her to do so and to take the matter up with the university. The appellant refused, asserted that it was a civil matter and that she had a right to be there. She demanded that he produce documentation showing that the suspension was still current, which was clearly not required.[3]
- [5]The police officer warned her that he would arrest her and that if need be would physically remove her from the university, but she continued to refuse and he then arrested her for trespass: p 3-38. He said he did that to stop the continuation of the offence. He said that he then took a pen from her hand and took her by the right arm, the other police officer took her by the left arm and her body went limp, so that it was necessary for them to lift her and carry her bodily out of the lecture room. She was kicking and screaming and yelling.[4] After they left the room she was placed on the ground and handcuffed. She was then informed she was being taken to the Southport watchhouse and that she would also be charged with obstructing a police officer. The appellant had to be dragged to the police car.[5] She said she would behave herself and the handcuffs were removed, but she continued to resist and the handcuffs were placed on her again. She was taken to the station in the police vehicle, and charged.
Decision of the Magistrate
- [6]The Magistrate referred to the Police Powers and Responsibilities Act s 634 and the decisions of Veivers v Roberts [1980] Qd R 226 and Hinchcliffe v Sheldon [1955] 3 All ER 406. The Magistrate accepted the evidence of the arresting officer (p 3) and noted that the police officer had listened to the appellant’s arguments in relation to why she was entitled to be in the lecture room, and accepted that the police officer had been left uncertain as to the situation in the light of what the appellant had said. He subsequently had a conversation with the security manager and the police sergeant who was there as a student, and the Magistrate found that he had come to the belief that any rights the defendant had to be on the campus had been revoked: p 4. The Magistrate proceeded on the basis that the police officer had come to the conclusion that there was a trespass and that he was entitled to arrest the defendant because of a suspicion he had formed that the defendant was trespassing: p 4. The Magistrate accepted that the defendant had deliberately allowed her body to go limp to make it more difficult for the police to effect the arrest on the trespass charge, and that that satisfied the definition of “obstruction”: p 5. Accordingly, the offence had been proved beyond reasonable doubt.
Applicable legislation
- [7]The Police Powers and Responsibilities Act 2000 (“the Act”) s 790(1) makes it an offence to assault or obstruct a police officer in the performance of the officer’s duties. In circumstances where a police officer is lawfully arresting a person, to resist arrest in a way which makes it more difficult for the police officer to perform the officer’s duties amounts to obstruction. If however the arrest was unlawful it is not an offence to resist arrest. The appellant argued that the arrest was unlawful. That depends on whether the provisions authorising arrest had been satisfied.
- [8]The power to arrest without a warrant is conferred by the Act in s 365(1)(a):
“(1) It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons—
- (a)to prevent the continuation or repetition of an offence or the commission of another offence; …”
- [9]The respondent concedes that the offence of trespass is an offence to which s 634 of the Act applies. That section provides relevantly as follows:
“(2) A police officer who suspects a person has committed a declared offence must, if reasonably practicable, give the person a reasonable opportunity to explain—
- (a)if the offence involves the person's presence at a place—why the person was at the place; …”
Authorities
- [10]The decision of Veivers v Roberts (supra) referred to by the Magistrate was an example of a case like the present: the respondent had been arrested for an offence under the Vagrants, Gaming and Other Offences Act 1931 which was similar to the offence of trespass, and was also charged under the then Police Act 1937 with an offence of resisting a member of the police force in the execution of his duty. DM Campbell J, with whom the other members of the court agreed, said at p 228:
“A constable may have reasonable grounds for believing that an offence has been committed although he is under a misapprehension as to the law. In this case the respondent was on private property. He was in an area which was fenced in. He was committing a trespass and the constable had reasonable grounds for believing that he found him offending against [the Act]. I therefore think that the magistrate was in error on the finding he made in dismissing the charge brought under s 59 of the Police Act.”
- [11]A similar issue came before the Court of Appeal in Coleman v Kinbacher [2003] QCA 575. In that case the applicant was arrested for an offence under s 7 of the Vagrants, Gaming and Other Offences Act 1931, resisted the arrest violently and was charged also with obstructing a police officer. Chesterman JA, with whose reasons the other members of the Court agreed, said at [28]-[32]:
“The submissions by the applicant fundamentally misunderstand the law. It is not the law that an arrest is only lawful if ultimately the person arrested is found to be guilty of the alleged offence which was the basis of the arrest.
[His Honour referred to s 365 of the Act, then numbered 198, and continued]
That section:
- (a)Gives a power to arrest dependent upon a police officer forming the belief prescribed by the section;
- (b)The existence of the power to arrest is distinct and independent from any ultimate determination of guilt;
- (c)Provided the police officer holds the requisite belief and the power of arrest therefore arises, the arrest is lawful notwithstanding that there is ultimately an acquittal of the defendant of the offence for which he was arrested and the arrest is lawful even if the police officer's belief was founded upon some mistake of fact or law.
The arresting officer Kinbacher had clearly formed the view:
- (a)That the applicant had committed the offence of disorderly conduct;
- (b)That he was going to repeat the offence; and
that state of mind was reasonably held given the applicant's conduct up to that point in time.
On that basis the arrest was lawful. It was not rendered unlawful by the Magistrate ultimately having a reasonable doubt as to the applicant's criminal liability for the secondary fire. Indeed, even if he was acquitted of the charge of disorderly conduct the arrest was still lawful and he would be guilty of the other charges.”
- [12]There is I think one comment which needs to be made in relation to that analysis of the provision. His Honour referred to the arrest being dependent on the police officer forming the “belief” prescribed by the section. What the section actually prescribes is that the police officer “reasonably suspects” that the person has committed or is committing an offence, and that it is reasonably necessary for one of the reasons stated to arrest that person. The former requirement is stated by the statute as being a reasonable suspicion, and there is a distinction between a suspicion and a belief.[6] On the other hand, the latter requirement is not expressed in terms of a suspicion, and in those circumstances what is required by the section is a belief.
- [13]I do not consider however that that means that the section requires not merely a suspicion that a person has committed or is committing an offence but a belief to that effect before a belief could be formed that it was reasonably necessary to effect an arrest to prevent the continuation of the offence; in my opinion the correct construction of the section is that all that is required in order to make the arrest lawful is a reasonable suspicion that a person has committed or is committing an offence, and a belief that, if an offence has been or is being committed, the person will continue to commit that offence. It was not necessary in Coleman for the matter to be analysed with this degree of precision, and indeed it may not be necessary in the present case, but I do not consider that the decision in Coleman is authority for the proposition that what is now s 349 requires a reasonable belief in the commission of the offence rather than a reasonable suspicion, which is what the Act actually provides.
- [14]In Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 Kitto J said at p 303:
“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’ Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in subsection (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes – a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.”
- [15]That passage was cited with approval by the High Court in George v Rockett (1990) 170 CLR 104 at 115. It also noted that suspicion had been described as “in its ordinary meaning [to be] a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’”[7] The facts which can reasonably ground a suspicion may be quite insufficient reason to ground a belief, yet some factual basis for the suspicion must be shown. Their Honours also said at p 116:
“The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.”
- [16]The distinction between suspicion and belief is therefore one which is well known to the law. A belief involves a mental inclination to the proposition that a fact is true, whereas a suspicion requires only a mental acceptance of the proposition that a fact may be true. No doubt what is requires is more than a mere theoretical possibility that a fact may be true, though that is an academic question given that there is a requirement that the suspicion be reasonable, but it was not necessary for the arresting officer actually to believe that the appellant was committing a trespass at the time, and it was sufficient if he had an apprehension that she was committing a trespass, provided that that state of mind was reasonably held.
- [17]Veivers was distinguished in Rowe v Kemper [2009] 1 Qd R 247 by the Court of Appeal, though the basic principle was confirmed: at [32] per McMurdo P, [121] per Mackenzie AJA. That particular case concerned a charge of failure to comply with a direction which it was held was not lawfully given, in circumstances where the decision in Veivers was distinguishable. I do not consider that that decision detracts from the force of the reasoning in Veivers, or in Coleman.
- [18]The appellant relied on the decision in Dobbs v Ward [2002] QSC 109, a case where it was held that a search warrant was too wide because it sought items as to which there were no reasonable grounds for suspicion. That decision was concerned with the material which must be available before a search warrant can properly be issued, a different question from the present, though her Honour did refer to the leading authorities in relation to the concept of reasonable grounds for suspicion, particularly George v Rockett (supra) and Queensland Bacon Pty Ltd v Rees (supra).
- [19]The appellant also referred to O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286. That was a case involving the lawfulness of an arrest under a provision entitling a constable for arrest without warrant a person whom he had reasonable grounds for suspecting to fall into a particular category. In that case the House of Lords confirmed the obvious propositions that whether the arrest was lawful depended on whether the arresting officer had formed a genuine suspicion as required under the statute, and that there were objectively reasonable grounds for forming such a suspicion. The court also held that the grounds did not have to be based on the officer’s own observations but could arise from information he had received, and that it did not matter if they were subsequently shown to be false provided that a reasonable man in the circumstances would regard them as reasonable grounds for suspicion. The court acknowledged that the arresting officer had to make the decision himself, and that a mere order by a superior officer to arrest was insufficient, but upheld the lawfulness of the particular arrest in that case.
- [20]That decision was apparently relied on for the proposition that the arresting officer should not have acted on the instructions of the security officers at the university, or on the instructions of the police officer who was there as a student, rather than on the basis of a suspicion or belief he had himself formed. But that was not the effect of the evidence of the arresting officer, which was that he had himself formed the suspicion, though he was relying on information he had been provided by other persons, as he was entitled to. That decision does not assist the appellant.
- [21]The appellant also referred to “The Queen v Barton”. No citation was given and I do not know whether the reference to R v Barton [1897] 1 QLJ (Supp) 16, R v Barton (1997) 95 A Crim R 228, or R v Barton (2001) 121 A Crim R 185, none of which appears to have anything to do with the matters raised by this appeal, or as the respondent surmised, Barton v R (1980) 55 ALJR 31, which appears to be equally devoid of relevance. The appellant also referred to a decision of Nguyen v Elliott, again without a citation, which I cannot identify.[8]
Analysis
- [22]In the present case the appellant submitted that the arresting officer did not in fact suspect that she had committed a trespass, and that the arrest was actually motivated by other considerations. It is true that the arresting officer at one stage was uncertain as to whether trespass actually was a criminal offence. This is perhaps unsurprising. Until relatively recently, mere trespass to land was not in itself a criminal offence. In the days of Veivers there was an offence under another Act of being in an enclosed yard without lawful excuse, and it was this further requirement which gave rise to the reasonable doubt on that charge in that case; hence the comment by DM Campbell J, that the defendant was trespassing, was not conclusive on that point. But the legislature has now made it an offence to trespass, at least in some cases. Although the question of what the arresting officer was told by the other persons, the former police officer who was the security manager, and the detective sergeant who happened to be present, was not explored in detail, he said the effect of what they told him was to assure him, as was the case, that trespass on that place, as a place used for a business purpose, was a criminal offence, and not, as the appellant asserted, a matter only for the civil law.[9]
- [23]The appellant argued that it was necessary for the arresting officer actually to form the requisite belief himself. That is correct, subject to what I said earlier about suspicion, but so long as there was a reasonable basis for that suspicion, how it came to be formed does not matter. There is no reason in principle why the suspicion could not be properly formed on the basis that the arresting officer accepted what he was told by someone else. This was not a case where the officer effectively conceded that he did not possess a suspicion that the appellant was committing the offence, but acted merely because other people had told him to do so. The Magistrate accepted the evidence of the arresting officer.
- [24]Making due allowance for the advantage that the Magistrate had in seeing and hearing the witness, and bearing in mind that the arresting officer’s account of his exchanges with the appellant was supported by a recording that he made of the incident, I can say that, having considered the evidence for myself, I have no reason to reject the Magistrate’s conclusion that the evidence of the arresting officer should be accepted, and should be preferred where it was in conflict with that of the appellant. Under these circumstances, the appropriate conclusion is that the arresting officer had the requisite state of mind to satisfy the statutory requirements for an arrest without warrant.
- [25]The other issue is whether the requisite state of mind was held reasonably, that is, whether he had information to induce that state of mind in a reasonable person.[10] As to this, the arresting officer had initially been told by his superior, in effect, that the university wanted someone removed from campus who had been excluded from the university, and had forwarded a copy of a letter sent to that person to confirm that. He then went to the head of security at the university, a person known to him as a former police sergeant, who told him she was not entitled to be on the campus.[11] The document with which he had been provided on its face suggested that the appellant had been excluded from the campus, and the university’s attempts to have that enforced implied that they regarded it as still current, despite the fact that it was dated a couple of months earlier.[12] In those circumstances the officer had what I regard as reasonable grounds for at least a suspicion that the appellant was trespassing on the university property by being present there. Indeed, I consider that he had reasonable grounds for a belief that she was trespassing. If the police officer in fact suspected that she was trespassing, I conclude that the information that he had available to him was such that his belief was reasonable. That aspect of the matter was therefore proved.
- [26]The next question is whether it was reasonable for him to conclude that it was necessary to arrest her to prevent a continuation of the offence.[13] On the hypothesis that she was then trespassing, it was clear from her attitude that she was intending to continue to do so as she had made it quite clear that she was not intending to leave voluntarily. In those circumstances, in my opinion it is clear that his belief, that it was necessary to arrest her in order to prevent her from continuing to trespass, was reasonable.
- [27]I should also say something about the requirements in s 634(2), which the appellant submitted had not been satisfied. The Magistrate found that the arresting officer had in fact listened to what the appellant had to say, in a conversation which the Magistrate said occupied some six minutes of a recording: p 4. What he no doubt meant was that one finds the recording of this at about the six minute mark of the recording Exhibit 8. Having listened to the recording, I consider that the officer obviously gave the appellant a reasonable opportunity to explain why she was at that place, an opportunity which she took.
- [28]There was no obligation imposed by the statute on the arresting officer to debate the issue with the appellant prior to the arrest, or to give her further opportunity to respond to any additional information that the officer obtained after he first spoke to her. All that was required was that he invite her to state why she was there, which he did. That information was available to the arresting officer to consider when deciding whether he reasonable suspected that she was committing the offence of trespass. I do not consider that the section obliges the officer to do more than what it in terms requires, that is, to give the person an opportunity to explain why the person was at the place. It does not require the arresting officer to disclose the basis upon which the arresting officer is considering acting in deciding whether to form a suspicion that the person is committing an offence, or to give the person the opportunity to be heard in relation to those matters. In my opinion the Magistrate’s decision that the requirements of that section had been complied with was correct. If the arrest was lawful, the appellant’s resistance clearly amounted to obstruction.
Grounds of appeal
- [29]The grounds of appeal stated in the notice of appeal included that the verdict was unreasonable, unsafe and unsatisfactory when considering the evidence. Plainly that ground was not made out; I consider that on the evidence the decision was not merely open but appropriate. It was also alleged that the Magistrate erred in judgment of fact and law, but no such error has in my opinion been exposed. It was alleged that the administration of justice was corrupted in some way which involved ex parte communication to the prosecution. This was not a ground particularly developed in oral submissions, but in a written outline of argument filed by the appellant she referred to the Magistrate’s closing statements containing derogatory slurs including prejudicial statements about the defendant taking anti-anxiety medication. I have not been able to identify any passage in the transcript which is relevant to this, nor was I referred to any.
- [30]This may be related to the defendant’s attempt to delay the hearing on the ground that she was not medically fit for trial. There was in fact no evidence that she was unfit to plead, and the transcript reveals that she had a clear understanding of what was happening. The same arguments were advanced before me, and rejected, and, although a good deal of what the appellant said was not directed to the relevant issues, there was nothing in what she said during the submissions on the appeal to suggest such a disturbance of mind as to render her unfit to conduct an appeal. That the Magistrate was not swayed by a delaying tactic does not mean that he was biased.
- [31]It was also alleged that the Magistrate was biased because he refused to accept written statements or documents which had not been properly proved. As a general proposition in a criminal trial written statements are inadmissible as hearsay, and the rules of evidence apply whether or not the defendant is legally represented. An unrepresented defendant is still required to comply with the rules of evidence, and the fact that the Magistrate refused to accept evidence which was inadmissible does not demonstrate bias on his part.
- [32]It is true that the Magistrate intervened a lot in the appellant’s cross-examination, but that was because so many of her questions were not proper questions, or she was just making statements. A litigant in person is not expected to know the rules of cross-examination, but she was not entitled to ignore them, and the fact that the Magistrate prevented improper or irrelevant questioning does not show a reasonable apprehension of bias. The same applies to the Magistrate’s refusal to allow the appellant, when giving evidence, to talk about matters which were not relevant to the trial.[14] That also does not show a reasonable apprehension of bias.
- [33]The appellant also submitted that the prosecution involved an underlying mob mentality of prejudice and sexism against the defendant because everyone except the appellant involved in the Magistrates Court trial was male. That does not justify a reasonable apprehension of bias. The appellant also referred to some attention she had received from the media which she said was hostile towards her, and the fact that she had been involved in other court proceedings which had ended favourably for her, but there is no reason to think that either of these matters had any effect on the conduct of this particular trial, and I regard the appellant’s assertion to the contrary as merely speculation. It was submitted that the Magistrate refused to allow defence submissions in full. There was on the Magistrates Court file 23 pages of written submissions, including a number of pages which appear to be a printout of the decision in O'Hara (supra), parts of which have been highlighted in various ways. Evidently the Magistrate received them and I have no reason to doubt that he considered them.
- [34]The basic argument advanced by the appellant was that the arresting officer did not in fact entertain the requisite suspicion, and that any such suspicion was not reasonably held in the circumstances, so that the Magistrate must have applied the wrong test. I have referred to the evidence and, having due regard to the advantage the Magistrate had in seeing the witnesses, my own conclusion on the evidence is that the arresting officer did entertain the relevant suspicion, and that the information which had been provided to him amounted to reasonable grounds to suspect that the appellant was committing an offence, and to believe that she was going to continue to commit the offence unless she was arrested, and in those circumstances the arrest was lawful. This was for the reasons discussed earlier.
- [35]The appellant submitted that the evidence of the arresting officer should not have been accepted, for various reasons, including that he was just trying to cover up the fact that he was merely acting on the instructions of a teenage boy who was a student. The police officer denied this, and there is no reason to doubt that denial. The appellant said that she had subsequently complained about the behaviour of the police officers, but that is a different matter and was not relevant to the question of whether or not she was lawfully arrested. It was submitted that the officer was entitled to act on information provided to him but only if it was factual information. It is true that the matters relied on as giving rise to the reasonable suspicion must include factual matters, but in the present case the relevant uncertainty which initially arose in the officer’s mind was as to whether trespass was an offence or whether it was, as the appellant asserted to him, merely a civil matter. That was the point upon which he subsequently sought guidance, and was told, by people who he was disposed to trust, correctly as it happens, that it was. In my opinion the police officer was clearly entitled to obtain advice on this matter, and to act on it if he believed it. In circumstances where the advice was correct, it cannot be unreasonable for him to have acted on it. There is no substance in this argument.
- [36]The appellant referred to the proposition that the officer had admitted that he did not have the requisite subjective opinion. That I consider involves a misrepresentation of the effect of his evidence. The position was that after he first spoke to the appellant he may well have lacked the requisite subjective suspicion, being in doubt as to whether trespass was a criminal matter, but once he obtained guidance on this point which he was disposed to accept, it seems to me clear from his evidence that he did form the necessary subjective suspicion. It was sufficient for him to have formed that suspicion at that time. The appellant argued that the officer had not investigated her assertion that she had a licence to be there, but it was not necessary for the officer to investigate that assertion at a factual level, either in the way suggested by the appellant or in any other way, given that he had what purported to be a letter from the vice chancellor purporting to exclude the appellant from the university, which had been provided by the university to him, and that he had been told was current. It was suggested that that document was too old, but it was less than two months old, and the fact that it had been provided in conjunction with the request for the police to remove the appellant from the university suggests that the university authorities regarded it as being still current, so that it was reasonable for the police officer to take the view that it was at least likely to be still current; he was certainly entitled to suspect that it was still current.
- [37]It was also submitted at one point that the arresting officer had not allowed the appellant sufficient time to leave the lecture room. That is plainly not correct. Apart from the fact that she obviously had ample time to gather her belongings, stand up and walk out of the room, her clearly expressed attitude was that she was not going to leave, indeed she was refusing to leave. There is no substance to this submission.
- [38]Another ground referred to in the notice of appeal was that witnesses were not produced for cross-examination which resulted in a miscarriage of justice. This was not a ground developed in submissions, but as a general proposition it is a matter for the prosecution to determine what witnesses it will call. The absence of the other police officer, and of the police officer who was there off-duty as a student, was explained by evidence during the trial. There is no reason to think that the evidence of either of those persons would have assisted the appellant, and no miscarriage of justice has been shown.
- [39]Another ground was that there was a team of prosecutors in the gallery of the court to give the illusion that the defendant had a criminal history which biased the court. There may well have been police prosecutors not otherwise engaged sitting in the gallery of the court, as they were entitled to. The conclusions sought to be drawn from this are in my opinion fanciful.
- [40]None of the matters raised by the appellant shows any error on the part of the Magistrate, and I consider his decision to convict to have been correct on the evidence.[15] With regard to the appeal against sentence, the Magistrate imposed a fine of $500, and did not record a conviction. The appellant was aged 39 at the time of the offending, and 41 on the day she was sentenced. At the time of this offence she had no criminal history. She described her occupation as “animal rights activist”: p 4‑19. She told me during the appeal hearing that she was receiving a disability pension.
- [41]In relation to penalty the defendant submitted before the Magistrate that she had been put through two years of trial for something which was dismissed and that was penalty enough. She had been put in the watchhouse overnight numerous times, been assaulted by police just for being on bail and she thought no penalty should be imposed: p 7. The Magistrate said that in view of the outcome on the first count the appellant was justified in pleading not guilty to both charges. With respect I think that was an error but it was an error in favour of the appellant. As the authorities I have referred to establish, whether or not she was guilty of the offence of obstructing police was independent of whether or not she was guilty of the offence of trespass, but of course she was entitled to take the matter to trial; the position is simply that she was not entitled to the benefit of mitigation that would be present if she had pleaded guilty to the charge of obstructing police. It also is clear that she has no remorse for the offending.
- [42]The ground stated in the notice of appeal on which the sentence appeal was based was that the sentence was unreasonable when considering the circumstances of mistaken arrest, mistaken imprisonment, assault in custody, bail and trial of two years’ duration with no reason to charge or prosecute from the outset, and a continuing pattern of police harassment and malicious prosecution. Most of those matters were not established in the trial and are clearly irrelevant for the purposes of sentence, though to the extent that the applicant spent some time in custody in relation to these charges, I gather five hours between when she was arrested and when she was granted bail from the watchhouse, it was relevant for the Magistrate to take that into account. The Magistrate did not specifically refer to this consideration, but he had just been referred to it by the appellant and I do not doubt that it was a factor of which he was conscious.
- [43]In the circumstances it has not been shown that the sentence imposed was manifestly excessive or that in any other respect the sentencing discretion miscarried. My own view is that the sentence imposed was in the circumstances quite moderate. I dismiss the appeal against sentence. It follows that the entire appeal is dismissed.
Footnotes
[1] Page 3-78.
[2] Page 3-38; that person has since left the police force and is working overseas, and was not called as a witness. The officer said he trusted their judgment, as to what was trespass: p 3-49.
[3] In argument she dismissed Exhibit 3 as an old letter. I consider that it was close enough to 16 January 2012 to justify an inference that it was still current.
[4] This can be heard on the recording, at about 8 minutes: Exhibit 8.
[5] This is confirmed by a video Exhibit 9, which is otherwise useless; whoever had the camera appears to have been making no conscious attempt to film the incident.
[6]George v Rockett (1990) 170 CLR 104 at 115.
[7]Hussein v Chong Fook Kam [1970] AC 942 at 948.
[8] The respondent suggested this was a reference to Nguyen v Elliott [1995] VSC 754, but that does not appear to exist, or at least, is not available on AustLii, and is not reported in the Victorian Reports.
[9] Page 3-49; p 3-53.
[10]George v Rockett (supra) at p 112.
[11] Page 3-62; p 3-78.
[12] Page 3-63.
[13] As he did: p 3-60.
[14] Eg at p 4-20.
[15] Applying Rowe v Kemper [2009] 1 Qd R 247; Teelow v Commissioner of Police [2009] QCA 84; Tierney v Commissioner of Police [2011] QCA 327 at [26].